NATIVIDAD LIM, Petitioner vs.

NATIONAL POWER CORPORATION, SPOUSES ROBERTO ARCINUE AND ARABELA

ARCINUE, Respondents.
G.R. NO. 178789 NOVEMBER 14, 2012

Section 4, Rule 19

Facts: Respondent National Power Corporation filed an expropriation suit against

petitioner Natividad B. Lim before the RTC of Lingayen, Pangasinan covering Lots 2373 and 2374
that the NPC needed for its Sual Coal-Fired Thermal Power Project. Since Lim was residing in the
United States, the court caused the service of summons on her on February 20, 1995 through her
tenant, a certain Wilfredo Tabongbong. On March 1, 1995, upon notice to Lim and the deposit of
the provisional value of the property, the RTC ordered the issued writ of possession in NPC's favor
that would enable it to cause the removal of Lim from the land.

Lim, represented by her husband Delfin, filed an omnibus motion to dismiss the action and to
suspend the writ of possession, questioning the RTC's jurisdiction over Lim's person and the
nature of the action. She also assailed the failure of the complaint to state a cause of action. The RTC
denied the motions. Respondent spouses Roberto and Arabela Arcinue filed a motion for leave to
admit complaint in intervention, alleging that they owned and were in possession of Lot 2374,
one of the two lots subject of the expropriation.

On January 7, 1997 the RTC granted the Arcinues' motion and required both the NPC
and Lim to answer the complaint-in-intervention within 10 days from receipt of its order. When
Lim and the NPC still did not file their answers to the complaint-in- intervention after 10
months, on December 7, 1998 they filed a motion for judgment by default. Lim sought to
expunge the motion on the ground that it lacked the requisite explanation why the Arcinues
resorted to service by registered mail rather than to personal service. At the scheduled hearing
of the motion, Lim's counsel did not appear. The NPC for its part manifested that it did not file an
answer since its interest lay in determining who was entitled to just compensation.

On March 1, 1999 the RTC issued an order of default9 against both Lim and the NPC. The RTC
pointed out that the Arcinues' failure to explain their resort to service by registered mail had
already been cured by the manifestation of Lim's counsel that he received a copy of the
Arcinues' motion on December 7, 1998 or 10 days before its scheduled hearing. Lim filed a
motion for reconsideration to lift the default order but the Court denied the motion, prompting
Lim to file a petition for certiorari before the Court of Appeals (CA) in CA-G.R. SP 52842. On
March 23, 2007 the CA rendered a decision that affirmed the RTC's order of default. Lim filed a
motion for
reconsideration but CA denied it, prompting her to file the present petition for review.

On September 24, 2007 the Court initially denied Lim's petition but on motion for
reconsideration, the Court reinstated the same.

ISSUE: Whether or not the CA gravely abused its discretion in affirming the order of default that
the RTC entered against Lim.
RULING:
Lim points out that an answer-in-intervention cannot give rise to default since the filing
of such an answer is only permissive. But Section 4, Rule 19 of the 1997 Rules of Civil Procedure
requires the original parties to file an answer to the complaint-in-intervention within 15 days
from notice of the order admitting the same, unless a different period is fixed by the court. This
changes the procedure under the former rule where such an answer was regarded as optional.
Thus, Lim's failure to file the required answer can give rise to default. The trial court had been
liberal with Lim. It considered her motion for reconsideration as a motion to lift the order of
default and gave her an opportunity to explain her side. The court set her motion for hearing but
Lim's counsel did not show up in court. She remained unable to show that her failure to file the
required answer was due to fraud, accident, mistake, or excusable negligence. And, although she
claimed that she had a meritorious defense, she was unable to specify what constituted such
defense. Lim points out that the RTC should have ordered the Arcinues' motion for judgment by
default expunged from the records since it lacked the requisite explanation as to why they
resorted to service by registered mail in place of personal service. There is no question that the
Arcinues' motion failed to comply with the requirement of Section 11, Rule 13 of the 1997
Rules of Civil Procedure which provides:

SECTION 11. Priorities in modes of service and filing. — Whenever practicable, the
service and filing of pleadings and other papers shall be done personally. Except with respect to
papers emanating from the court, a resort to other modes must be accompanied by a written
explanation, why the service or filing was not done personally. A violation of this Rule may be
cause to consider the paper as not filed.

But the above does not provide for automatic sanction should a party fail to submit the
required explanation. It merely provides for that possibility considering its use of the term
"may." The question is whether or not the RTC gravely abused its discretion in not going for the
sanction of striking out the erring motion. The Court finds no such grave abuse of discretion
here. As the RTC pointed out, notwithstanding that the Arcinues' failed to explain their resort to
service by registered mail rather than by personal service, the fact is that Lim's counsel expressly
admitted having received a copy of the Arcinues' motion for judgment by default on December 7,
1998 or I0 days before its scheduled hearing. This means that the Arcinues were diligent enough
to file their motion by registered mail long before the scheduled hearing. Personal service is
required precisely because it often happens that hearings do not push through because, while a
copy of the motion may have been served by registered mail before the date of the hearing, such
is received by the adverse party already after the hearing. Thus, the rules prefer personal
service. But it does not altogether prohibit service by registered mail when such service, when
adopted, ensures as in this case receipt by the adverse party.
 G.R. NO. 183034 MARCH 12, 2014
SPOUSES FERNANDO

and MA. ELENA SANTOS, Petitioners vs. LOLITA ALCAZAR, represented by her Attorney-in- Fact DELFIN
CHUA, Respondent.
FACTS:

The rule that the genuineness and due execution of the instrument shall be deemed
admitted, unless the adverse party specifically denies them under oath, applies only to parties to
such instrument.

In February 2001, respondent Lolita Alcazar, proprietor of Legazpi Color Center (LCC),
instituted through her attorney-in-fact Delfin Chua a Complaint4 for sum of money against the
petitioners, spouses Fernando and Ma. Elena Santos, to collect the value of paint and construction
materials obtained by the latter from LCC amounting to P1,456,000.00, which remained unpaid
despite written demand. The case was docketed as Civil Case No. 9954 and assigned to Branch 5 of
the Regional Trial Court of Legazpi City. Respondent’s cause of action is based on a document
entitled "Acknowledgment" apparently executed by hand by petitioner Fernando, In their Answer,
petitioners sought the dismissal of the Complaint, alleging among others that –

1. Paragraph 5 is specifically denied as the document which Defendant Fernando T. Santos

signed does not reflect the true contract or intention of the parties, the actionable
document is incorrect and has to be reformed to reflect the real indebtedness of the
defendants;
2. Paragraph 6 of the complaint is specifically denied as the same does not reflect the correct
amount. The defendants*’+ computation is that the amount of P600,000.00 is the only amount
due and the instrument used as the actionable document does not reflect the correct
substance of the transaction and indicates a reformation of the actionable document;
3. Paragraph 7 is specifically denied as defendants are willing to pay the correct amount,
not the amount in the complaint as the same does not indicate the correct amount owing
to the plaintiff;

Pre-trial was conducted, the trial court issued its Pre-trial Order setting forth the
matters taken up during the pre-trial conference and the schedule of hearings. The presentation
of respondent’s evidence was set on October 10; November 8 and 21; and December 6 and 13,
2005. Petitioners were scheduled to present their case on January 9 and 23; and February 6, 2006.
Respondent then presented her evidence and testified in court as the lone witness. She then made a
formal offer of her evidence and rested her case. Petitioners filed a Demurrer to Evidence, which
respondent opposed. Petitioners argued that the Acknowledgment – respondent’s Exhibit "A" which
was presented in court – was not an original copy and thus inadmissible; petitioners’ receipt of
the written demand was not proved; the alleged deliveries of paint and construction materials
were not covered by delivery receipts; and respondent’s testimony was merely hearsay and
uncorroborated.
 The court denied the demurrer for lack of merit. In the same Order, the trial court
scheduled the presentation of petitioners’ evidence. Petitioners moved to reconsider the trial court’s
Order. The trial court issued an Order denying petitioners’ Motion for Reconsideration and
scheduled the presentation of evidence for the petitioners on March 20, 2006. The trial court
essentially held that petitioners, in their Answer, admitted that they entered into transactions
with the respondent for the delivery of paint and construction materials, which remained unpaid;
that from the Acknowledgment, Exhibit "A," signed by Fernando and duly presented, authenticated,
and identified by respondent during trial, petitioners admitted that their unpaid obligation –
including interest – amounted toP1,456,000.00; and that petitioners’ plea for reformation has
no basis.

ISSUE:
Whether or not respondent failed to produce and present the original copy of the
acknowledgement receipt which is a violation of the best evidence rule.

HELD:
No. Respondent’s failure to present the original copy of the Acknowledgment during the
taking of hertestimony for the second time, and the presentation of a mere photocopy thereof at
said hearing, does not materially affect the outcome of the case. It was a mere procedural
inadvertence that could have been cured and did not affect petitioners’ cause in any manner. As
conceded by them and as held by the CA, the original exists and was made part of the records of the
case when respondent’s evidence was first taken. Though respondent now claims that she had
lost the original, the CA proclaimed that the document resides in the record. This would explain
then why respondent cannot find it in her possession; it is with the court as an exhibit. Besides,
it evidently appears that there is no question raised on the authenticity and contents of the
photocopy that was presented and identified in court; petitioners merely insist that the
photocopy is inadmissible as a result of respondent’s failure to present the original, which they
nevertheless admit to exist and is found and included in the record of the case.

While it is a basic rule of evidence that the original copy prevails over a mere photocopy,
there is no harm if in a case, both the original and a photocopy thereof are authenticated,
identified and formally offered in evidence by the party proponent. More to the point is the fact
that petitioners failed to deny specifically under oath the genuineness and due execution of the
Acknowledgment in their Answer. The effect of this is that the genuineness and due execution of
the Acknowledgment is deemed admitted. "By the admission of the genuineness and due
execution [of such document] is meant that the party whose signature it bears admits that he
signed it or that it was signed by another for him with his authority; that at the time it was
signed it was in words and figures exactly as set out in the pleading of the party relying upon it;
that the document was delivered; and that any formal requisites required by law, such as a seal,
an acknowledgment, or revenue stamp, which it lacks, are waived by him. Hence, such defenses
as that the signature is a forgery x x x; or that it was unauthorized x x x; or that the party
charged signed the instrument in some other capacity than that alleged in the pleading setting it
out x x x; or that it was never delivered x x x, are cut off by the admission of its genuineness and
due execution."

"There is no need for proof of execution and authenticity with respect to documents the
genuineness and due execution of which are admitted by the adverse party." With the
consequent admission engendered by petitioners’ failure to properly deny the Acknowledgment
in their Answer, coupled with its proper authentication, identification and offer by the
respondent, not to mention petitioners’ admissions in paragraphs 4 to 6 of their Answer that
they are indeed indebted to respondent, the Court believes that judgment may be had solely on
the document, and there is no need to present receipts and other documents to prove the claimed
indebtedness. The Acknowledgment, just as an ordinary acknowledgment receipt, is "valid and
binding between the parties who executed it, as a document evidencing the loan agreement they
had entered into." The absence of rebutting evidence occasioned by petitioners’ waiver of their
right to present evidence renders the Acknowledgment as the best evidence of the transactions
between the parties and the consequential indebtedness incurred. Indeed, the effect of the
admission is such that "a prima facie case is made for the plaintiff which dispenses with the
necessity of evidence on his part and entitles him to a judgment on the pleadings unless a
special defense of new matter, such as payment, is interposed by the defendant."
 G.R. NO. 195619 SEPTEMBER 5, 2012
PLANTERS DEVELOPMENT BANK, et. Al., vs. JULIE CHANDUMAL,

Service of Summons

FACTS:

The instant case stemmed from a contract to sell a parcel of land, together with
improvements, between BF Homes, Inc. (BF Homes) and herein respondent Julie Chandumal
(Chandumal). Chandumal paid her monthly amortizations from December 1990 until May 1994
when she began to default in her payments. In a Notice of Delinquency and Rescission of Contract
with Demand to Vacate, PDB gave Chandumal a period of thirty (30) days from receipt within which
to settle her installment arrearages together with all its increments; otherwise, all her rights
under the contract shall be deemed extinguished and terminated and the contract declared as
rescinded. Despite demand, Chandumal still failed to settle her obligation. An action for judicial
confirmation of notarial rescission and delivery of possession was filed by PDB against Chandumal.
Consequently, summons was issued and served by deputy sheriff Roberto T. Galing (Sheriff
Galing). According to his return, Sheriff Galing attempted to personally serve the summons upon
Chandumal but it was unavailing as she was always out of the house on said dates. Hence, the sheriff
caused substituted service of summons by serving the same through Chandumal’s mother who
acknowledged receipt thereof. For her failure to file an answer within the prescribed period,
PDB filed an ex parte motion to declare Chandumal in default. The RTC issued an Order granting
the motion of PDB.

Chandumal filed an Urgent Motion to Set Aside Order of Default and to Admit Attached
Answer. She maintained that she did not receive the summons and/or was not notified of the
same. She further alleged that her failure to file an answer within the reglementary period was
due to fraud, mistake or excusable negligence. The RTC denied Chandumal’s motion to set aside
the order of default. Her motion for reconsideration was also denied for lack of merit.
Conformably, the RTC allowed PDB to present its evidence ex parte. The RTC rendered a Decision in
favor of PDB. Chandumal appealed to the CA. Without ruling on the propriety of the judicial
confirmation of the notarial rescission, the CA rendered the assailed decision nullifying the RTC
decision due to invalid and ineffective substituted service of summons.

ISSUES:

1. Whether there was a valid substituted service of summons

2. Whether Chandumal voluntarily submitted to the jurisdiction of the trial court

RULING:

1. In this case, the sheriff resorted to substituted service of summons due to his failure to
 serve it personally. In Manotoc v. Court of Appeals, the Court detailed the requisites for a
valid substituted service of summons, summed up as follows: (1) impossibility of
prompt personal service – the party relying on substituted service or the sheriff must
show that the defendant cannot be served promptly or there is impossibility of prompt
service; (2) specific details in the return – the sheriff must describe in the Return
of Summons the facts and circumstances surrounding the attempted personal service;
(3) a person of suitable age and discretion – the sheriff must determine if the person
found in the alleged dwelling or residence of defendant is of legal age, what the
recipient’s relationship with the defendant is, and whether said person comprehends
the significance of the receipt of the summons and his duty to immediately deliver it to
the defendant or at least notify the defendant of said receipt of summons, which matters
must be clearly and specifically described in the Return of Summons; and (4) a competent
person in charge, who must have sufficient knowledge to understand the obligation of
the defendant in the summons, its importance, and the prejudicial effects arising from
inaction on the summons.

In applying the foregoing requisites in the instant case, the CA correctly ruled that the
sheriff’s return failed to justify a resort to substituted service of summons. According to
the CA, the Return of Summons does not specifically show or indicate in detail the actual
exertion of efforts or any positive step taken by the officer or process server in
attempting to serve the summons personally to the defendant. The return merely states
the alleged whereabouts of the defendant without indicating that such information was
verified from a person who had knowledge thereof. Indeed, the sheriff’s return shows a mere
perfunctory attempt to cause personal service of the summons on Chandumal. There was
no indication if he even asked Chandumal’s mother as to her specific whereabouts except
that she was "out of the house", where she can be reached or whether he even tried to
await her return. The "efforts" exerted by the sheriff clearly do not suffice to justify
substituted service and his failure to comply with the requisites renders such service
ineffective.

2. Despite that there was no valid substituted service of summons, the Court, nevertheless,
finds that Chandumal voluntarily submitted to the jurisdiction of the trial court. When
Chandumal filed an Urgent Motion to Set Aside Order of Default and to Admit Attached
Answer, she effectively submitted her person to the jurisdiction of the trial court as the
filing of a pleading where one seeks an affirmative relief is equivalent to service of
summons and vests the trial court with jurisdiction over the defendant’s person. Thus, it
was ruled that the filing of motions to admit answer, for additional time to file answer,
for reconsideration of a default judgment, and to lift order of default with motion for
reconsideration is considered voluntary submission to the trial court’s jurisdiction.The
Court notes that aside from the allegation that she did not receive any summons,
Chandumal’s motion to set aside order of default and to admit attached answer failed to
positively assert the trial court’s lack of jurisdiction.

Given Chandumal’s voluntary submission to the jurisdiction of the trial court, the
RTC had all authority to render its Decision dated May 31, 2004. The CA, therefore, erred
 in nullifying said RTC decision and dispensing with the resolution of the substantial issue
raised herein, i.e., validity of the notarial rescission.

G.R. NO. 193494 MARCH 7, 2014

LUI ENTERPRISES INC., Petitioner. vs. ZUELLIG PHARMA CORP. AND THE PHILIPPINE BANK COMMUNICATIONS,
Respondents.
Rules 16, 37, 38

FACTS:

Lui Enterprises and Zuellig Pharma Corporation entered into a 10-year contract of lease
over a parcel of land. Subsequently, Zuellig received a letter from the Philippine Bank of
Communications. Claiming to be the new owner of the leased property, the bank asked Zuellig to
pay rent directly to it. Zuellig promptly informed Lui Enterprises of the PBCom’s claim. Lui
enterprises wrote to Zuellig and insisted on its right to collect the leased property. Due to the
conflicting claims of Lui Enterprises and PBCom over the rental payments, Zuellig filed a
complaint for interpleader with the RTC. PBCom filed its answer to the complaint, while Lui
Enterprises filed a motion to dismiss on the ground that Zuellig’’s alleged representative did not
have authority to file the complaint for interpleader on behalf of the corporation. According to
Lui Enterprises, an earlier filed nullification of deed of dation in payment case pending with the
RTC of Davao barred the filing of the interpleader case. Lui Enterprises filed this case against the
PBCom with respect to several properties it dationed to the bank in payment of its obligations,
one of which being the property leased to Zuellig.

In the nullification of deed of dation in payment case, Lui Enterprises raised the issue of
which corporation had the better right over the rental payments, which, as Lui Enterprises argued,
was the same issue involved in the interpleader case. To avoid possible conflicting decisions of the
Davao trial court and the Makati trial court on the same issue, Lui Enterprises argued that the
subsequently filed interpleader case be dismissed. Zuellig filed its opposition to the motion to
dismiss, arguing that the same should be dismissed for having been filed late. Considering that
Lui Enterprises filed its motion to dismiss beyond the 15-day period to file an answer, Zuelling
moved that Lui Enterprises be declared in default. The RTC of Makati found that Lui Enterprises
failed to file its motion to dismiss within the reglementary period, and denied its motion to
dismiss and declared it in default.

It was only one year after the issuance of the order of default that Lui Enterprises filed a
motion to set aside order of default in the RTC of Makati on the ground of excusable negligence. The
RTC of Makati subsequently rendered a decision holding that Lui Enterprises was barred from any
claim in respect of the rental payments since it was declared in default. Thus, according to the RTC,
there was no issue as to which corporation had the better right over the rental payments. The trial
court awarded the total consigned amount to the PBCom. Lui Enterprises appealed to the CA, which
 found its appellant’s brief insufficient for non-compliance with Rule 44, Section 13 of the 1997
Rules of Civil Procedure. The CA dismissed Lui Enterprises’ appeal and affirmed the decision of the
RTC of Makati.

ISSUE:
1. Whether or not the RTC of Makati erred in denying Lui Enterprises’ motion to set aside
order of default

2. Whether or not the annulment of deed of dation in payment pending in the RTC of Davao
barred the subsequent filing of the interpleader case in the RTC of Makati.

RULING:
1. A defendant declared in default loses his or her standing in court. However, the
defendant declared in default does not waive all of his or her rights. He or she still has the
right to receive notice of subsequent proceedings. Also, the plaintiff must still present
evidence supporting his or her allegations despite the default of defendant. After a notice of
declaration of default but before the court renders the default judgment, the defendant may
file, under oath, a motion to set aside order of default. The defendant must properly show
that his or her failure to answer was due to fraud, accident, mistake or excusable negligence.
The defendant must also have a meritorious defense.

If the defendant discovers his or her default after judgment but prior to the
judgment becoming final and executory, he or she may file a motion for new trial under
Rule 37. If he or she discovers his or her default after the judgment has become final and
executory, a petition for relief from judgment under Rule 38 may be filed. Appeal is also
available to the defendant declared in default. He or she may appeal the judgment for being
contrary to the evidence or to the law under Rule 41.

In this case, Lui Enterprises had discovered its default before the RTC of Makati rendered
judgment. Thus it timely filed a motion to set aside order of default, raising the ground of
excusable negligence. Excusable negligence is “one which ordinary diligence and prudence
could not have guarded against.” The circumstances should be properly alleged and proved.
In this case, the Court finds that Lui Enterprises’ failure to answer within the required
period is inexcusable.

Lui Enterprises’ counsel filed its motion to dismiss four days late. It did not
immediately take steps to remedy its default and took one year from discovery of default to
file a motion to set aside order of default. In its motion to set aside order of default, Lui
Enterprises only conveniently blamed its counsel for the late filing of the answer without
offering any excuse for the late filing. This is not excusable negligence under Rule 9 of the
1997 Rules of Civil Procedure. Thus, the RTC of Makati did not err in refusing to set aside the
order of default.

2. Under Rule 16, Section 1, a motion to dismiss may be filed on the ground of litis
pendentia. The requisites of litis pendentia are:
 a. Identity of parties or at least such as represent the same interest in both actions;

b. Identity of rights asserted and reliefs prayed for, the reliefs being founded on the
same facts; and

c. The identity in the two cases should be such that the judgment that may be
rendered in one would, regardless of which party is successful, amount to res
judicata in the other.

All of the requisites must be present. Absent one requisite, there is no litis pendentia. In
this case, there is no litis pendentia since there is no identity of parties in the
nullification of deed of dation in payment case and the interpleader case. Zuellig Pharma
is not a party to the nullification case filed in the Davao RTC.

There is also no identity of rights asserted and reliefs prayed for. Lui Enterprises filed
the first case to nullify the deed of dation in payment it executed in favor of PBCom.
Zuellig subsequently filed the
interpleader case to consign in court the rental payments and extinguish its obligation
as lessee. The interpleader case was necessary and was not instituted to harass either
Lui Enterprises or the PBCom. Thus, the pending nullification case did not bar the filing
of the interpleader case.
 PABLO PUA, Petitioner vs. LOURDES DEYTO, Respondent.
G.R. NO. 173336 NOVEMBER 26, 2012

Section 14, Rule 14 of the Rules of Court

FACTS:
Pua is engaged in the business of wholesale rice trading. Among his clients was
respondent Jennelita Ang,allegedly operating under the business and trade name of JD Grains
Center.

In October 2000, Pua delivered to Ang truckloads of rice worth P766,800.00. Ang paid Pua
through two (2) postdated checks dated November 4, 2000 and November 6, 2000. When the
checks fell due, Pua tried to encash them, but they were dishonored because they were drawn
from a closed account. Pua immediately went to Ang’s residence to complain. Unfortunately, he was
only able to talk to Ang’s mother and co-respondent, Lourdes Deyto, who told him that Ang had been
missing. Unable to locate Ang, Pua demanded payment from Deyto, but she refused to pay.

On November 24, 2000, Pua filed a complaint with the RTC forcollection of sum of
money with preliminary attachment against Ang and Deyto, as co-owners of JD Grains Center. The
complaint alleged that the respondents were guilty of fraud in contracting the obligation, as they
persuaded Pua to conduct business with them and presented documents regarding their financial
capacity to fund the postdated checks. On November 28, 2000, the RTC issued an order for the
issuance of a writ of preliminary attachment upon an attachment bond of P766,800.00. Since
Ang could not be found and had no available properties to satisfy the lien, the properties of
Deyto were levied upon. Summons was duly served on Deyto, but not on Ang who had
absconded. On April 16, 2001, Deyto submitted her answer with special and affirmative
defenses.6 On May 8, 2001, Deyto filed a “Motion to Set Hearing of Defendant’s Special and
Affirmative Defenses,” which was in the nature of a motion to dismiss.7 In an order dated July 12,
2001, the RTC denied Deyto’s motion to dismiss.

Since service of summons could not be effected on Ang, Pua moved for leave of court to
serve summons by publication on Ang on January 8, 2002. The RTC granted the motion in an
order dated January 11, 2002. By March 2002, Pua’s counsel manifested that the summons for
Ang remained unpublished; the RTC accordingly cancelled the pre-trial scheduled on March 5,
2002. On May 17, 2002, Pua again filed a manifestation that as early as April 17, 2002, he had
already paid P9,500.00 to Manila Standard for the publication of the summons on Ang, but it
failed to do so. This prompted the RTC to issue an order directing Manila Standard to explain
why the summons was not published despite payment of the corresponding fees. On May 30,
2002, Manila Standard explained15 to the trial court that when Pua paid the publication fee, he
issued a specific order to hold the publication until he ordered otherwise. Eventually, the
summons for Ang was published in the May 31, 2002 edition of the Manila Standard. On January
24, 2003, more than (6) months after the publication of summons for Ang, the case was archived
for inactivity. Since neither party filed any further motions, the RTC dismissed the case for the
plaintiff’s lack of interest to prosecute on October 1, 2004.

On November 3, 2004, Pua submitted a motion for reconsideration and a motion to declare
Ang in default. The RTC, however, denied the motion in an order dated January 3, 2005; it added
that the dismissal of the main case amounts to the dismissal of the motion to declare Ang in
default. Pua appealed the case to the CA. He argued that the reason for the delay in prosecuting
the case was the untimely death of his counsel – Atty. Kamid Abdul. He added that he had shown
interest in the case by securing the properties of Deyto; paying the annual premium of the
attachment bond for the years 2002, 2003, and 2004; and causing the publication of summons
on Ang. On February 23, 2006, the CA denied Pua’s appeal. While the CA recognized some of
Pua’s actions in prosecuting the case, it still found that the totality of the surrounding
circumstances of the case pointed to gross and immoderate delay in the prosecution of the
complaint.18 Pua moved for reconsideration, which the CA denied in its resolution dated June
23, 2006.

ISSUE:
Whether or not the plaintiff incurred unreasonable delay in prosecuting the present
case.

HELD:
NO. Petition is denied. We agree with the finding that Pua committed delay in
prosecuting his case againstthe respondents. We clarify, however, that Pua’s delay is limited to
his failure to move the case forward after the summons for Ang had been published in the Manila
Standard; he could not be faulted for the delay in the service of summons for Ang. A 13-month
delay occurred between the filing of the complaint and the filing of the motion to serve
summons by publication on Ang. This delay, however, is attributable to the failure of the sheriff
to immediately file a return of service of summons. The complaint was filed on November 24,
2000, but the return of service of summons was filed only on January 3, 2002, after the RTC
ordered its submission and upon Pua’s motion.

Under Section 14, Rule 14 of the Rules of Court, service of summons may be effected
on a defendant by publication, with leave of court, when his whereabouts are unknown and cannot
be ascertained by diligent inquiry. Until the summons has been served on Ang, the case cannot
proceed since Ang is an indispensable party to the case; Pua alleged in his complaint that the
respondents are co-owners of JD Grains Center. After the summons for Ang was published on May
31, 2002 and the Affidavit of Service was issued by Manila Standard’s Advertising Manager on
June 3, 2002, no further action was taken on the case by Pua. Even after the RTC issued its order
dated January 24, 2003 to archive the case, Pua made no move to have the case reopened. More than
a year after the case was sent to the archives (October 1, 2004), the RTC decided to dismiss the case
for Pua’s lack of interest to prosecute the case. It was only after Pua received the order of
dismissal that he filed his motion for reconsideration and motion to declare Ang in default.

Once a case is dismissed for failure to prosecute, the dismissal has the effect of an
adjudication on the merits and is understood to be with prejudice to the filing of another action
unless otherwise provided in the order of dismissal. In this case, Pua failed to take any action on
the case after summons was served by publication on Ang. It took him more than two years to
file a motion to declare Ang in default and only after the RTC has already dismissed his case for
failure to prosecute. That Pua renewed the attachment bond is not an indication of his intention
to prosecute. The payment of an attachment bond is not the appropriate procedure to settle a
legal dispute in court; it could not be considered as a substitute for the submission of necessary
pleadings or motions that would lead to prompt action on the case.

G.R. NO. 201601 MARCH 12, 2014

MARYLOU CABRERA, Petitioner vs. FELIX NG, Respondent.

Sections 4 & 5, Rule 15 of the Rules of Court

FACTS:
Respondent Felix Ng filed a complaint for sum of money with the RTC against the
petitioner and herhusband Marionilo Cabrera, alleging that the latter issued to him three
Metrobank checks, which were all dishonored upon presentation. The spouses Cabrera admitted
that they issued two checks to the respondent and that the same were dishonored when presented
for payment. However, they claimed that they paid the respondent the amount represented by
the said checks through the latter’s son Richard Ng. Further, they deny having issued a third check
to the respondent, alleging that the said check was forcibly taken from them by Richard Ng. The RTC
rendered a Decision in favor of the respondent.

On August 8, 2007, the spouses Cabrera received a copy of the RTC Decision dated August 7,
2007. On August 14, 2007, the spouses Cabrera filed with the RTC a motion for reconsideration,
which they set for hearing on August 17, 2007. On even date, the spouses Cabrera sent a copy of
their motion for reconsideration to the respondent thru registered mail; it was actually received
by the respondent on August 21, 2007. The said motion for reconsideration, however, was not
heard on August 17, 2007 as the new acting presiding judge of the said court had just assumed
office. On August 28, 2007, the RTC issued a notice, which set the said motion for reconsideration
for hearing on September 25, 2007. On September 20, 2007, the respondent filed an opposition8 to
the motion for reconsideration filed by the spouses Cabrera. The respondent alleged that the
said motion for reconsideration is a mere scrap of paper since it violated the three-day notice
requirement. The respondent pointed out that the spouses Cabrera sent to him a copy of their
motion for reconsideration, which was set for hearing on August 17, 2007, via registered mail
on August 14, 2007; that he actually received a copy thereof only on August 21, 2007 – four days
after the scheduled hearing thereon.

It appears that the scheduled hearing of the spouses Cabrera’s motion for reconsideration on
September 25, 2007 did not push through. Consequently, on September 26, 2007, the RTC issued
another notice, which set the said motion for reconsideration for hearing on October 26, 2007. On
October 26, 2007, the RTC issued an Order, which directed the parties to file their additional
pleadings, after which the motion for reconsideration filed by the spouses Cabrera would be
deemed submitted for resolution. On December 19, 2007, the RTC issued an Order which denied
the motion for reconsideration filed by the spouses Cabrera. The RTC pointed out that the
spouses Cabrera violated Section 4, Rule 15 of the Rules of Court, which mandates that every
motion required to be heard should be served by the movant in such a manner as to ensure its
receipt by the other party at least three days before the date of hearing.

The RTC further opined that a motion, which fails to comply with the three-day notice
requirement is a mere scrap of paper; it is not entitled to judicial cognizance and would not toll
the running of the reglementary period for filing the requisite pleadings. Accordingly, the RTC held,
its Decision dated August 7, 2007 had already become final for failure of the spouses Cabrera to
comply with the three-day notice requirement. The petitioner then filed a petition for certiorari
with the CA, alleging that the RTC gravely abused its discretion in denying her motion for
reconsideration. On October 21, 2009, the CA, by way of the assailed Decision, denied the
petition for certiorari filed by the petitioner. The CA opined that the RTC did not abuse its
discretion in denying the motion for reconsideration filed by the spouses Cabrera since it merely
applied the three-day notice requirement under Section 4, Rule 15 of the Rules of Court.

ISSUE:
Whether or not the CA erred in affirming the RTC Order dated December 19, 2007,
which denied the motion for reconsideration filed by the spouses Cabrera.

RULING:
Yes. The petition is meritorious. The general rule is that the three-day notice
requirement in motionsunder Sections 4 and 5 of the Rules of Court is mandatory. It is an integral
component of procedural due process.17 "The purpose of the three-day notice requirement, which
was established not for the benefit of the movant but rather for the adverse party, is to avoid
surprises upon the latter and to grant it sufficient time to study the motion and to enable it to
meet the arguments interposed therein."

"A motion that does not comply with the requirements of Sections 4 and 5 of Rule 15 of
the Rules of Court is a worthless piece of paper which the clerk of court has no right to receive
and which the court has no authority to act upon." "Being a fatal defect, in cases of motions to
reconsider a decision, the running of the period to appeal is not tolled by their filing or
pendency. Nevertheless, the three-day notice requirement is not a hard and fast rule. When the
adverse party had been afforded the opportunity to be heard, and has been indeed heard
through the pleadings filed in opposition to the motion, the purpose behind the three-day notice
requirement is deemed realized. In such case, the requirements of procedural due process are
substantially complied with. Thus, in Preysler, Jr. v. Manila Southcoast Development Corporation,
the Court ruled that:

The three-day notice rule is not absolute. A liberal construction of the procedural rules
is proper where the lapse in the literal observance of a rule of procedure has not prejudiced the
adverse party and has not deprived the court of its authority. Indeed, Section 6, Rule 1 of the
Rules of Court provides that the Rules should be liberally construed in order to promote their
objective of securing a just, speedy and inexpensive disposition of every action and proceeding.
Rules of procedure are tools designed to facilitate the attainment of justice, and courts must
avoid their strict and rigid application which would result in technicalities that tend to frustrate
rather than promote substantial justice. It is undisputed that the hearing on the motion for
reconsideration filed by the spouses Cabrera was reset by the RTC twice with due notice to the
parties; it was only on October 26, 2007 that the motion was actually heard by the RTC. At that
time, more than two months had passed since the respondent received a copy of the said motion
for reconsideration on August 21, 2007. The respondent was thus given sufficient time to study
the motion and to enable him to meet the arguments interposed therein. Indeed, the respondent
was able to file his opposition thereto on September 20, 2007.

Notwithstanding that the respondent received a copy of the said motion for
reconsideration four days after the date set by the spouses Cabrera for the hearing thereof, his
right to due process was not impinged as he was afforded the chance to argue his position. Thus,
the RTC erred in denying the spouses Cabrera's motion for reconsideration based merely on
their failure to comply with the three-day notice requirement.
HEIRS OF DR. MARIANO FAVIS SR., Petitioners vs. JUANA GONZALES et.al., Respondents.
G.R.NO. 185922 JANUARY 15, 2014

Rule 16 of the Rules of Court

FACTS:
This is a petition for review assailing the 10 April 2008 Decision and 7 January
2009Resolution of the Court of Appeals in CA-G.R. CV No. 86497 dismissing petitioners’ complaint
for annulment of the Deed of Donation for failure to exert earnest efforts towards a compromise.
The decision of the CA was not based on assigned errors in the appeal.

ISSUE:
Whether or not the CA erred in rendering decision not based on assigned errors in the
appeal.

HELD:
Yes. The appellate court committed egregious error in dismissing the complaint. The
appellate courts’decision hinged on Article 151 of the Family Code, viz:

Art. 151. No suit between members of the same family shall prosper unless it should
appear from the verified complaint or petition that earnest efforts toward a compromise have
been made, but that the same have failed. If it is shown that no such efforts were in fact made,
the case must be dismissed.

This rule shall not apply to cases which may not be the subject of compromise under the
Civil Code. The appellate court correlated this provision with Section 1, par. (j), Rule 16 of the
1997 Rules of Civil Procedure, which provides:

Section 1. Grounds. — Within the time for but before filing the answer to the complaint or
pleading asserting a claim, a motion to dismiss may be made on any of the following grounds:
xxxx

(j) That a condition precedent for filing the claim has not been complied with.

The appellate court’s reliance on this provision is misplaced. Rule 16 treats of the grounds
for a motion to dismiss the complaint. It must be distinguished from the grounds provided under
Section 1, Rule 9 which specifically deals with dismissal of the claim by the court motu proprio.
Section 1, Rule 9 of the 1997 Rules of Civil Procedure provides:
 Section 1. Defenses and objections not pleaded. − Defenses and objections not pleaded
either in a motion to dismiss or in the answer are deemed waived. However, when it appears
from the pleadings or the evidence on record that the court has no jurisdiction over the subject
matter, that there is another action pending between the same parties for the same cause, or
that the action is barred by a prior judgment or by statute of limitations, the court shall dismiss
the claim.

Section 1, Rule 9 provides for only four instances when the court may motu proprio dismiss
the claim, namely: (a) lack of jurisdiction over the subject matter; (b) litis pendentia ; (c) res
judicata ; and (d) prescription of action. Specifically in Gumabon v. Larin, cited in Katon v.
Palanca, Jr., the Court held:

x x x [T]he motu proprio dismissal of a case was traditionally limited to instances when the
court clearly had no jurisdiction over the subject matter and when the plaintiff did not appear
during trial, failed to prosecute his action for an unreasonable length of time or neglected to
comply with the rules or with any order of the court. Outside of these instances, any motu
proprio dismissal would amount to a violation of the right of the plaintiff to be heard. Except for
qualifying and expanding Section 2, Rule 9, and Section 3, Rule 17, of the Revised Rules of Court,
the amendatory 1997 Rules of Civil Procedure brought about no radical change. Under the new
rules, a court may motu proprio dismiss a claim when it appears from the pleadings or evidence
on record that it has no jurisdiction over the subject matter; when there is another cause of
action pending between the same parties for the same cause, or where the action is barred by a
prior judgment or by statute of limitations. x x x.

The error of the Court of Appeals is evident even if the consideration of the issue is kept
within the confines of the language of Section 1(j) of Rule 16 and Section 1 of Rule 9. That a
condition precedent for filing the claim has not been complied with, a ground for a motion to
dismiss emanating from the law that no suit between members from the same family shall
prosper unless it should appear from the verified complaint that earnest efforts toward a
compromise have been made but had failed, is, as the Rule so words, a ground for a motion to
dismiss. Significantly, the Rule requires that such a motion should be filed "within the time for
but before filing the answer to the complaint or pleading asserting a claim." The time frame
indicates that thereafter, the motion to dismiss based on the absence of the condition precedent
is barred. It is so inferable from the opening sentence of Section 1 of Rule 9 stating that defense
and objections not pleaded either in a motion to dismiss or in the answer are deemed waived.
There are, as just noted, only four exceptions to this Rule, namely, lack of jurisdiction over the
subject matter; litis pendentia ; res judicata ; and prescription of action. Failure to allege in the
complaint that earnest efforts at a compromise has been made but had failed is not one of the
exceptions. Upon such failure, the defense is deemed waived.
It was in Heirs of Domingo Valientes v. Ramas cited in P.L. Uy Realty Corporation v. ALS
Management and Development Corporation where we noted that the second sentence of Section
1 of Rule 9 does not only supply exceptions to the rule that defenses not pleaded either in a
motion to dismiss or in the answer are deemed waived, it also allows courts to dismiss cases
motu propio on any of the enumerated grounds. The tenor of the second sentence of the Rule is
 that the allowance of a motu propio dismissal can proceed only from the exemption from the rule on
waiver; which is but logical because there can be no ruling on a waived ground.

OFFICE OF THE OMBUDSMAN v. PRUDENCIO C. QUIMBO

G.R. No. 173277, 25 February 2015

Section 1 of Rule 19 of the Rules of Court

Even if the Ombudsman is not impleaded as a party in the proceedings, part of its broad powers include
defending its decisions before the Court of Appeals.

Facts:

Gilda D. Daradal, a clerk in the Provincial Engineering Office of Catbalogan, Samar filed a
complaint for Sexual Harassment and Oppression against Engr. Prudencio C. Quimbo (Quimbo),
Provincial Engineer of Samar with the Office of the Ombudsman-Visayas alleging that, Quimbo
asked her to massage his forehead and nape and, in the course thereof, he said, “You had been lying
to me you have already seen my manhood. When shall I have to see yours?” Also, Quimbo ordered
her detail to the Civil Service Commission in Catbalogan, Samar, to perform the tasks of a male
utility personnel. Her name was removed from the payroll of the personnel of the Provincial
Engineering Office because of her refusal to submit to his sexual advances.

Daradal filed a motion for withdrawal of the complaint but was denied by the Ombudsman-
Visayas. The Ombudsman-Visayas dismissed the case of sexual harassment against Quimbo but
finding him guilty of oppression. When the case reached the Court of Appeals, it reversed the
ruling of the Ombudsman-Visayas and denied the motion for intervention of the latter.

ISSUE:

Does the Ombudsman possess the requisite legal interest to intervene in the
proceedings where its decision is in question?

RULING:

Yes. Pursuant to Section 1 of Rule 19 of the Rules of Court, the Ombudsman may
validly intervene in the said proceedings as its legal interest on the matter is beyond cavil. The
Court elucidated inOmbudsman v. De Chavez, thus:

The Office of the Ombudsman had a clear legal interest in the inquiry into whether
respondent committed acts constituting grave misconduct, an offense punishable under the
Uniform Rules in Administrative Cases in the Civil Service. It was in keeping with its duty to act
as a champion of the people and preserve the integrity of public service that petitioner had to be
given the opportunity to act fully within the parameters of its authority.
 The Office of the Ombudsman cannot be detached, disinterested and neutral specially
when defending its decisions. Moreover, in administrative cases against government personnel,
the offense is committed against the government and public interest. What further proof of a
direct constitutional and legal interest in the
accountability of public officers is necessary?

As can be gleaned from the foregoing disquisition, the CA, in the present case, gravely
erred in disallowing the Ombudsman’s motion to intervene. It failed to consider the essence of
the Ombudsman’s constitutionally and statutorily conferred powers establishing its clear legal
interest in ensuring that its directive be implemented.
 G.R. NO. 160689 MARCH 26, 2014
RAUL SESBREÑO, Petitioner vs. COURT OF APPEALS, et al., Respondents.

Bersamin, J.:

FACTS:
Raul Sesbrenñ o filed a case for damages against the Visayan Electric Company (VECO) on
the ground of
abuse of right. Sesbrenñ o accused the violation of contract (VOC) inspection team dispatched by the
VECO to check his electric meter with conducting an unreasonable search in his residential premises.
However, the RTC dismissed his claim, and the CA affirmed the dismissal – hence, this appeal. The
RTC and the CA unanimously found the testimonies of Sesbrenñ o’s witnesses implausible because of
inconsistencies on material points. Before the SC, Sesbrenñ o asserts otherwise.

ISSUE:
Whether or not the SC review and undo the findings of the RTC and the CA as to the
credibility of
Sesbrenñ o’s witnesses and their testimonies

HELD:
No. Considering that such findings [by the RTC and CA now contested by Sesbrenñ o are]
related to the
credibility of the witnesses and their testimonies, the Court cannot review and undo them now
because it is not a trier of facts, and is not also tasked to analyze or weigh evidence all over
again. Verily, a review that may tend to supplant the findings of the trial court that had the first-
hand opportunity to observe the demeanor of the witnesses themselves should be undertaken
by the Court with prudent hesitation. Only when Sesbrenñ o could make a clear showing of abuse
in their appreciation of the evidence and records by the trial and the appellate courts should the
Court do the unusual review of the factual findings of the trial and appellate courts. Alas, that
showing was not made here.
 [G.R. No. 173336. November 26, 2012.]

PABLO PUA, petitioner, vs. LOURDES L. DEYTO, doing business under the trade name
of "JD Grains Center"; and JENNELITA DEYTO ANG a.k.a. "JANET ANG," respondents.

The Antecedent Facts

Pua is engaged in the business of wholesale rice trading. Among his clients was respondent
Jennelita Ang, allegedly operating under the business and trade name of JD Grains Center. In
October 2000, Pua delivered to Ang truckloads of rice worth P766,800.00. Ang paid Pua through
two (2) postdated checks dated November 4, 2000 and November 6, 2000. When the checks fell
due, Pua tried to encash them, but they were dishonored because they were drawn from a closed
account.
Pua immediately went to Ang's residence to complain. Unfortunately, he was only able to talk to
Ang's mother and co-respondent, Lourdes Deyto, who told him that Ang had been missing. Unable
to locate Ang, Pua demanded payment from Deyto, but she refused to pay. CSDcTA
On November 24, 2000, Pua filed a complaint 5 with the RTC for collection of sum of money with
preliminary attachment against Ang and Deyto, as co-owners of JD Grains Center. The complaint
alleged that the respondents were guilty of fraud in contracting the obligation, as they persuaded
Pua to conduct business with them and presented documents regarding their financial capacity to
fund the postdated checks.
On November 28, 2000, the RTC issued an order for the issuance of a writ of preliminary
attachment upon an attachment bond of P766,800.00. Since Ang could not be found and had no
available properties to satisfy the lien, the properties of Deyto were levied upon.
Summons was duly served on Deyto, but not on Ang who had absconded. On April 16, 2001, Deyto
submitted her answer with special and affirmative defenses. 6 On May 8, 2001, Deyto filed a
"Motion to Set Hearing of Defendant's Special and Affirmative Defenses," which was in the nature of
a motion to dismiss. 7 In an order dated July 12, 2001, the RTC denied Deyto's motion to dismiss,
stating that:
The allegations raised by defendant Lourdes Deyto as special and affirmative defenses are
largely evidentiary in nature and therefore can be threshed out in a trial on the merit.
Consequently, the prayer to dismiss the complaint upon these grounds, is hereby
Denied. 8
After Pua and Deyto filed their respective pre-trial briefs, the case was set for pre-trial conference
on November 13, 2001. On the scheduled date, the RTC ordered the resetting of the pre-trial
conference to January 22, 2002, upon the parties' agreement. 9 The RTC, upon motion by Pua, also
ordered the sheriff to submit the return ofsummons for Ang.
The summons by publication to Ang
Since service of summons could not be effected on Ang, Pua moved for leave of court to
serve summons by publication on Ang on January 8, 2002. 10 The RTC granted the motion in an
order dated January 11, 2002. 11
By March 2002, Pua's counsel manifested that the summons for Ang remained unpublished; the RTC
accordingly cancelled the pre-trial scheduled on March 5, 2002. 12
On May 17, 2002, Pua again filed a manifestation that as early as April 17, 2002, he had already paid
P9,500.00 to Manila Standard for the publication of the summonson Ang, but it failed to do
so. 13 This prompted the RTC to issue an order directing Manila Standard to explain why
the summons was not published despite payment of the corresponding fees. 14 On May 30, 2002,
Manila Standard explained 15 to the trial court that when Pua paid the publication fee, he issued a
specific order to hold the publication until he ordered otherwise. Eventually, the summons for Ang
was published in the May 31, 2002 edition of the Manila Standard.
On January 24, 2003, more than (6) months after the publication of summons for Ang, the
case was archived for inactivity. 16 Since neither party filed any further motions, the RTC
dismissed the case for the plaintiff's lack of interest to prosecute on October 1, 2004. 17
On November 3, 2004, Pua submitted a motion for reconsideration and a motion to declare Ang in
default. The RTC, however, denied the motion in an order dated January 3, 2005; it added that the
dismissal of the main case amounts to the dismissal of the motion to declare Ang in default.
Pua appealed the case to the CA. He argued that the reason for the delay in prosecuting the case was
the untimely death of his counsel — Atty. Kamid Abdul. He added that he had shown interest in the
case by securing the properties of Deyto; paying the annual premium of the attachment bond for the
years 2002, 2003, and 2004; and causing the publication of summons on Ang.
On February 23, 2006, the CA denied Pua's appeal. While the CA recognized some of Pua's actions in
prosecuting the case, it still found that the totality of the surrounding circumstances of the case
pointed to gross and immoderate delay in the prosecution of the complaint. 18 Pua moved for
reconsideration, which the CA denied in its resolution dated June 23, 2006.
The Petition
Pua now questions the CA rulings before us. He insists that it was the untimely demise of his
counsel that created the hiatus in the prosecution of the case. He adds that he has consistently paid
the annual premiums of the attachment bond and has also served summons by publication on Ang.
He also questions the delay in the filing of Deyto's answer.
Pua pleads that the case be decided on the merits and not on mere technicalities. He contends that
he has adequately shown his interest in pursuing his meritorious claim against the respondents
before the RTC; and the RTC and the CA committed patent error in dismissing his case for his
alleged lack of interest. SaETCI
For her part, Deyto reiterates that the numerous delays involved in this case warrant its dismissal
for failure to prosecute. First, the motion to serve summons by publication on Ang was filed about
four hundred (400) days after the filing of the complaint; second, the delay of seventy-seven (77)
days before the case was set for pre-trial; and third, the delay of almost four (4) years in the
prosecution of the case.
The Issue
The issue centers on whether the plaintiff incurred unreasonable delay in prosecuting the
present case.
 The Court's Ruling
We deny the petition for lack of merit.
We agree with the finding that Pua committed delay in prosecuting his case against the
respondents. We clarify, however, that Pua's delay is limited to his failure to move the case
forward after the summons for Ang had been published in the Manila Standard; he could not be
faulted for the delay in the service of summons for Ang.
A 13-month delay occurred between the filing of the complaint and the filing of the motion to
serve summons by publication on Ang. This delay, however, is attributable to the failure of the
sheriff to immediately file a return of service of summons. The complaint was filed on November 24,
2000, but the return of service ofsummons was filed only on January 3, 2002, after the RTC ordered
its submission and upon Pua's motion. 19
Under Section 14, Rule 14 of the Rules of Court, service of summons may be effected on a defendant
by publication, with leave of court, when his whereabouts are unknown and cannot be ascertained
by diligent inquiry. The Rules of Court provides:
SEC. 14. Service upon defendant whose identity or whereabouts are unknown. — In any
action where the defendant is designated as an unknown owner, or the like, or whenever
his whereabouts are unknown and cannot be ascertained by diligent inquiry,
service may, by leave of court, be effected upon him by publication in a newspaper of
general circulation and in such places and for such time as the court may order. [emphases
ours]
In Santos, Jr. v. PNOC Exploration Corporation, 20 the Court authorized resort to service
of summons by publication even in actions in personam, considering that the provision itself allow
this mode in any action, i.e., whether the action is in personam, in rem, or quasi in rem. The ruling,
notwithstanding, there must be prior resort to service in person on the defendant 21 and
substituted service, 22 and proof that service by these modes were ineffective before service by
publication 23 may be allowed for defendants whose whereabouts are unknown, considering that
Section 14, Rule 14 of the Rules of Court requires a diligent inquiry of the defendant's
whereabouts.24
Until the summons has been served on Ang, the case cannot proceed since Ang is an indispensable
party to the case; Pua alleged in his complaint that the respondents are co-owners of JD Grains
Center. 25 An indispensable party is one who must be included in an action before it may properly
go forward. A court must acquire jurisdiction over the person of indispensable parties before it can
validly pronounce judgments personal to the parties. The absence of an indispensable party renders
all subsequent actions of the court null and void for want of authority to act, not only as to the
absent parties but even as to those present. 26
After the summons for Ang was published on May 31, 2002 and the Affidavit of Service was issued
by Manila Standard's Advertising Manager on June 3, 2002, no further action was taken on the case
by Pua. Even after the RTC issued its order dated January 24, 2003 to archive the case, Pua made no
move to have the case reopened. More than a year after the case was sent to the archives (October 1,
2004), the RTC decided to dismiss the case for Pua's lack of interest to prosecute the case. It was
only after Pua received the order of dismissal that he filed his motion for reconsideration and
motion to declare Ang in default. 27
We give scant consideration to Pua's claim that the untimely demise of his counsel caused the delay
in prosecuting the case. Pua had employed the services of a law firm; 28 hence, the death of one
partner does not excuse such delay; the law firm had other lawyers who would take up the slack
created by the death of a partner. The more relevant rule is that a client is bound by the action of his
counsel in the conduct of his case; he cannot complain that the result of the litigation could have
been different had the counsel proceeded differently. 29
Moreover, Pua had also secured the services of another law firm even before the death of Atty.
Kamid Abdul. 30 In fact, this second law firm signed the formal appearance in court on October 15,
2001. 31 To our mind, with two (2) law firms collaborating on the case, no reason exists for delay if
only Pua had been more vigilant.
Section 3, Rule 17 of the Revised Rules of Court authorizes the dismissal of a case when the plaintiff
fails to prosecute his action for an unreasonable length of time:
SEC. 3. Dismissal due to fault of plaintiff. — If, for no justifiable cause, the plaintiff fails to
appear on the date of the presentation of his evidence in chief on the complaint, or to
prosecute his action for an unreasonable length of time, or to comply with these Rules
or any order of the court, the complaint may be dismissed upon motion of the defendant
or upon the court's own motion, without prejudice to the right of the defendant to
prosecute his counterclaim in the same or in a separate action. This dismissal shall have
the effect of an adjudication upon the merits, unless otherwise declared by the
court. [emphases ours; italics supplied]
Once a case is dismissed for failure to prosecute, the dismissal has the effect of an adjudication on
the merits and is understood to be with prejudice to the filing of another action unless otherwise
provided in the order of dismissal. 32
In this case, Pua failed to take any action on the case after summons was served by publication on
Ang. It took him more than two years to file a motion to declare Ang in default and only after the
RTC has already dismissed his case for failure to prosecute. That Pua renewed the attachment bond
is not an indication of his intention to prosecute. The payment of an attachment bond is not the
appropriate procedure to settle a legal dispute in court; it could not be considered as a substitute
for the submission of necessary pleadings or motions that would lead to prompt action on the case.
WHEREFORE, the foregoing premise considered, this present petition is DENIED. Accordingly, the
decision and the resolution of the Court of Appeals in CA-G.R. CV No. 84331 are hereby AFFIRMED.
Costs against Pablo Pua.
SO ORDERED. STaCIA
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